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Judgment
Hardayal Hardy, J.
(1) The title of the suit gives the names of two plaintiffs, but in reality the plaintiff is only one as the second plaintiff Goodwill Pictures Limited is merely the old name of the first plaintiff Goodwill India Limited. The suit is for a declaration that the plaintiffs are the owners of certain immovable property the market value of which according to them is Rupees fifty p. lacs, and that they are not liable to be dispossessed there from by defendants I to 5 without adequate compensation being given to them in the course of acquisition proceedings under the Land Acquisition Act, 1894.
(2) The plaintiffs originally based their claim to relief on a saledeed executed in their favor by defendants 6 and 7. Later, they filed an application under Order 6 Rule 17 of the CPC for amendment of the plaint by incorporating therein an alternative plea that in case they are not held to be the absolute owners of the property in dispute by virtue of its purchase by them and instead the government is held to be the owner thereof then the plaintiffs and their predecessors-in-interest have acquired title to the property by adverse possession and prescription inasmuch as they have been in actual, open, exclusive, un-interrupted and hostile possession of the property for the last 100 years and more to the knowledge of the government.
(3) The plaintiffs'' prayer for amendment of the plaint was allowed by this court and the defendants also filed their written statements. Defendants I to 5 however took a preliminary objection to the effect that no notice u/s 80 CPC had been served on them with respect to the alternative plea of adverse possession. Defendant No. 3 also repeated its earlier objection that no notice u/s 53-B of the Delhi Development Act, 1957 was ever served on it and as such the suit was not maintainable.
(4) Issues were thereafter framed, issues 2 and 6 being in relation to the afore-mentioned pleas of the said defendants. The case then proceeded to evidence and the statements of a few witnesses produced by the plaintiffs were recorded.
(5) On 7/5/1968 the plaintiffs filed the present application where in after staling the steps so far taken in the suit it was averred: -
" THAT the plaintiffs apprehend that the present suit may fail for want of the required notices under sections 80 CPC . and 53 (a) of the Delhi Development Act and as such there is a formal defect in the suit". (6) For the reasons aforesaid, it was prayed that in the interest of justice the plaintiffs be allowed to withdraw the present suit with liberty to file another suit on the same cause of action.
(7) The application is opposed by defendants I to 5 on whose behalf an extremely lucid and able argument has been addressed to me by their learned counsel Mr. T. P. S. Chawla. The contention urged is that the provisions of Order 23 Rule 1(2) cannot be availed of by a plaintiff whose suit is likely to fail by reason of non-compliance with the requirements of Section 80 CPC or Section 53-B of the Delhi Development Act, 1957. It is further urged that in such a suit even an order rejecting She plaint cannot be passed and the only order that can be made is one of dismissal of the suit.
(8) On the other hand the plaintiffs'' counsel contends that the absence of notice under both or either of the two sections involves a mere formal defect in the suit which has no relation to the merits of the claim. The plaintiffs are Therefore entitled to leave of the court for withdrawal of the suit and institution of a fresh suit on the same cause of action. Let us examine the contentions urged by both sides in the light of the relevant provisions of law and the principles laid down in decided cases.
(9) The law is firmly established that section 80 CPC imposes a statutory and un-qualified obligation upon the court to insist upon strict compliance with the requirements of the Section. In Bhagchand Dagudusa v. Secretary of State (54 I.A. 338) the Privy Council observed:-
"The Act albeit a procedure must be read in accordance with the natural meaning of its words. Section 80 is express, (10) The plaintiffs'' prayer for amendment of the plaint was allowed by this court and the defendants also filed their written statements. Defendants I to 5 however took a preliminary objection to the effect that no notice u/s 80 CPC had been served on them with respect to the alternative plea of adverse possession. Defendant No. 3 also repeated its earlier objection that no notice u/s 53-B of the Delhi Development Act, 1957 was ever served on it and as such the suit was not maintainable.
(11) Issues were thereafter framed, issues 2 and 6 being in relation to the afore-mentioned pleas of the said defendants. The case then proceeded to evidence and the statements of a few witnesses produced by the plaintiffs were recorded.
(12) On 7/5/1968 the plaintiffs filed the present application where in after staling the steps so far taken in the suit it was averred: -
" THAT the plaintiffs apprehend that the present suit may fail for want of the required notices under sections 80 CPC . and 53 (a) of the Delhi Development Act and as such there is a formal defect in the suit". (13) For the reasons aforesaid, it was prayed that in the interest of justice the plaintiffs be allowed to withdraw the present suit with liberty to file another suit on the same cause of action.
(14) The application is opposed by defendants I to 5 on whose behalf an extremely lucid and able argument has been addressed to me by their learned counsel Mr. T. P. S. Chawla. The contention urged is that the provisions of Order 23 Rule 1(2) cannot be availed of by a plaintiff whose suit is likely to fail by reason of non-compliance with the requirements of Section 80 CPC or Section 53-B of the Delhi Development Act, 1957. It is further urged that in such a suit even an order rejecting She plaint cannot be passed and the only order that can be made is one of dismissal of the suit.
(15) On the other hand the plaintiffs'' counsel contends that the absence of notice under both or either of the two sections involves a mere formal defect in the suit which has no relation to the merits of the claim. The plaintiffs are Therefore entitled to leave of the court for withdrawal of the suit and institution of a fresh suit on the same cause of action. Let us examine the contentions urged by both sides in the light of the relevant provisions of law and the principles laid down in decided cases.
(16) The law is firmly established that section 80 CPC imposes a statutory and un-qualified obligation upon the court to insist upon strict compliance with the requirements of the Section. In Bhagchand Dagudusa v. Secretary of State 54 I.A. 338 the Privy Council observed:-
"The Act albeit a procedure must be read in accordance with the natural meaning of its words. Section 80 is express, explicit and mandatory, and if admits of no implications or exceptions." (17) The decision was approved by their Lordships of the Supreme Court in Dhian Singh Sobha Singh and Another Vs. The Union of India (UOI), and only a slight caution was administered that the terms of the notice should not be scrutinized in a pedantic manner or in a manner divorced from common sense. No such question however arises in the present case. Here it is the admitted case of the plaintiffs that the notice served by them did not raise the alternative plea of ownership based on adverse possession which was introduced for the first time by way of amendment of the plaint. As regards notice u/s 53-B of the Delhi Development Act, it is common ground that no such notice was served on defendant No. 3 at all, although in fairness to the plaintiffs'' counsel it may be mentioned that he does contend that no such notice was really necessary.
(18) This leaves no doubt that the notice previously served u/s 80 CPC does not fully cover the plaintiffs'' case as it stands after the plaint was amended. Likewise the complete absence of a notice u/s 53-B of the Delhi Development Act seems to me to be an insurmountable barrier in the way of the action being maintained against defendant No. 3. On the plaintiffs'' own showing, its claim to compensation under the Land Acquisition Act, 1894 is being resisted by defendant No. 3 on the ground that the property in dispute is owned by the Central Government and is under the management of defendant No. 3.
(19) The challenge to the plaintiffs'' right, title and interest has Therefore come as much from defendant No. 3 as from defendants I and 2. A consolidated relief has Therefore been claimed by the plaintiffs against all the defendants I to 5.
(20) In fact the plaintiffs have made no serious attempt to shy away from this position for it is stated by them in their application F that they apprehend that their suit is likely to fail for want of the required notices u/s 80 CPC and 53B [53(a) in the application is obviously a typing error] of the Delhi Development Act.
(21) The question for determination Therefore is whether a defect of this nature is a formal defect in the suit within the meaning of clause (2)(a) of Rule I of Order 23 CPC The expression ''formal defect" connotes defects of various kinds not affecting the merits of the case. (See. Ramrao Bhagwantrao Inamdar Vs. Babu Appanna Samage, and Thakur Pd. and another v. Rasool Bux and another, AIR 1950 All. 489 . The Privy Council in Robert Watson and Co. v. Collector of Rajshaye 13 MIA 160, a case referred to by Mr. Justice Dua (as his Lordship then was) in Paira Ram and another v. explicit and mandatory, and if admits of no implications or exceptions."
(22) The decision was approved by their Lordships of the Supreme Court in Dhian Singh Sobha Singh and Another Vs. The Union of India (UOI), and only a slight caution was administered that the terms of the notice should not be scrutinized in a pedantic manner or in a manner divorced from common sense. No such question however arises in the present case. Here it is the admitted case of the plaintiffs that the notice served by them did not raise the alternative plea of ownership based on adverse possession which was introduced for the first time by way of amendment of the plaint. As regards notice u/s 53-B of the Delhi Development Act, it is common ground that no such notice was served on defendant No. 3 at all, although in fairness to the plaintiffs'' counsel it may be mentioned that he does contend that no such notice was really necessary.
(23) This leaves no doubt that the notice previously served u/s 80 CPC does not fully cover the plaintiffs'' case as it stands after the plaint was amended. Likewise the complete absence of a notice u/s 53-B of the Delhi Development Act seems to me to be an insurmountable barrier in the way of the action being maintained against defendant No. 3. On the plaintiffs'' own showing, its claim to compensation under the Land Acquisition Act, 1894 is being resisted by defendant No. 3 on the ground that the property in dispute is owned by the Central Government and is under the management of defendant No. 3. The challenge to the plaintiffs'' right, title and interest has Therefore come as much from defendant No. 3 as from defendants I and 2. A consolidated relief has Therefore been claimed by the plaintiffs against all the defendants I to 5.
(24) In fact the plaintiffs have made no serious attempt to shy away from this position for it is stated by them in their application that they apprehend that their suit is likely to fail for want of the required notices u/s 80 CPC and 53-B [53(a) in the application is obviously a typing error] of the Delhi Development Act.
(25) The question for determination Therefore is whether a defect of this nature is a formal defect in the suit within the meaning of clause (2)(a) of Rule I of Order 23 CPC The expression ''formal defect" connotes defects of various kinds not affecting the merits of the case. (See. Ramrao Bhagwantrao Inamdar Vs. Babu Appanna Samage, and Thakur Pd. and another v. Rasool Bux and another, AIR 1950 All. 489 . The Privy Council in Robert Watson and Co. v. Collector of Rajshaye 13 MIA 160 , a case referred to by Mr. Justice Dua (as his Lordship then was) in Paira Ram and Another Vs. Ganesh Dass and Others, gave instances of what might constitute a formal defect by observing:-
THERE is a proceeding in those Courts called a non-suit, which operates as a dismissal of the suit without barring the right of the party to litigate the matter in a fresh suit; but that seems to be limited to cases of misguide either of parties or of the matters in contest in the suit; to cases in which a material document has been rejected because it has not borne the proper stamp, and to cases in which there has been an erroneous valuation of the subject of the suit. In all those cases the suit fails by reason of some point of form. but their Lordships are aware of no case in which, upon an issue joined, and the party having failed to produce the evidence which he was bound to produce in support of that issue, liberty has been given to him to bring a second suit, except in the particular instance that is now before them." (26) The observations were no doubt made in a case which has been decided even before the CPC of 185 and although the judgment was rendered in 1869, no reference was made to section 97 of that Code. This would however make no difference to the meaning given by their Lordships to what was described by them as a failure of the suit by reason of some point of form.
(27) The argument of Mr. Chawla is that a defect arising from non-service of notice is not a defect in the form of the suit According to the learned counsel, a formal defect in a suit is one which is discovered after the suit has been properly instituted and the suit fails by reason of some point of form. Section 80 CPC on the other hand creates a bar to the institution of the suit itself Where a suit is Therefore instituted against the government with out serving a proper notice as required by section 80 CPC the suit must be deemed not to have been instituted at all. On the other hand Order 23 CPC comes into play only when some formal defect is found in the suit after it has been properly instituted It cannot Therefore apply to a suit which should be deemed not to have been instituted at all. The argument which: the support of a decision of Narashimhan J. in Pillarisetti Gotilingam Vs. The State of Andhra Pradesh, has a great deal of force.
(28) The next question is whether in the absence of any formal defect as envisaged by clause (2) (a) of Rule I of Order 23, recoil can be had to clause (2) (b) of the said Rule which confers pow on the court to allow the plaintiff to institute a fresh suit when there are "other sufficient grounds" for making such an order. If Order 23 as a whole, is not applicable to such a suit the application of clause (2)(b) which forms part of the same Order obviously out of question. However, that apart, there is another ''There is a proceeding in those Courts called a non-suit, which operates as a dismissal of the suit without barring the right of the party to litigate the matter in a fresh suit; but that seems to be limited to cases of misguide either of parties or of the matters in contest in the suit; to cases in which a material document has been rejected because it has not borne the proper stamp, and to cases in which there has been an erroneous valuation of the subject of the suit. In all those cases the suit fails by reason of some point of form. but their Lordships are aware of no case in which, upon an issue joined, and the party having failed to produce the evidence which he was bound to produce in support of that issue, liberty has been given to him to bring a second suit, except in the particular instance that is now before them."
(29) The observations were no doubt made in a case which had been decided even before the CPC of 1859 and although the judgment was rendered in 1869, no reference was made to section 97 of that Code. This would however make no difference to the meaning given by their Lordships to what was described by them as a failure of the suit by reason of some point of form.
(30) The argument of Mr. Chawla is that a defect arising from non-service of notice is not a defect in the form of the suit. According to the learned counsel, a formal defect in a suit is one which is discovered after the suit has been properly instituted and the suit fails by reason of some point of form. Section 80 CPC . on the other hand creates a bar to the institution of the suit itself. Where a suit is Therefore instituted against the government without serving a proper notice as required by section 80 CPC the suit must be deemed not to have been instituted at all. On the other hand Order 23 CPC comes into play only when some formal defect is found in the suit after it has been properly instituted. It cannot Therefore apply to a suit which should be deemed not to have been instituted at all. The argument which has the support of a decision of Narashimhan J. in Pillarisetti Gotilingam Vs. The State of Andhra Pradesh, has a great deal of force.
(31) The next question is whether in the absence of any formal defect as envisaged by clause (2) (a) of Rule I of Order 23, recourse can be had to clause (2) (b) of the said Rule which confers power on the court to allow the plaintiff to institute a fresh suit when there are "other sufficient grounds" for making such an order. If Order 23 as a whole, is not applicable to such a suit the application of clause (2)(b) which forms part of the same Order is obviously out of question. However, that apart, there is another very good reason which precludes the exercise of power under clause (2)(b) of Rule 1. Decided cases show that there has been divergence of judicial opinion among the High Courts in India about the meaning of the expression "other sufficient grounds" in clause (2)(b). Some of the High Courts, including a single Judge of Lahore High Court (TekChandJ.) in Mt. Fatima v. Nura and others AIR 1938 Lah 294 had taken the view that "other sufficient grounds" in clause (2)(b) of Rule I of Order 23 must be read ejusdem generis with the grounds mentioned in clause (2)(a). The High Courts of Bombay and Allahabad have however taken a different view. In Ramrao Bhagwantrao Inamdar Vs. Babu Appanna Samage, a Full Bench of Bombay High Court and in Abdul Ghafoor Vs. Abdul Rahman, a Full Bench of Allahabad High Court has held that these words could not be read ejusdem generis with the words in clause (2)(a) but they covered grounds analogous to those mentioned in that clause. Non-compliance with the requirements of section 80 C.P.C. cannot Therefore be held to fall within either of the two clauses of Rule I of Order 23 CPC The application of Order 23 being thus ruled out, what is the course open to the court in a case like the present ? In my view, one course is to reject the plaint under Order 7 Rule 11 CPC while the other is to dismiss the suit.
(32) Mr. Chawla contends that Order 7 Rule Ii CPC deals with the rejection of the plaint before the defendant is summoned.
(33) But in a case where the defendant appears to defend the suit and it is found that notice u/s 80 is defective, the proper course is to dismiss the suit. In support of his argument the learned counsel has drawn my attention to a Bench decision of the High Court of Madras in Governor General of India in Council v. Raghunandan Shenoy AIR 1947 Mad. 64 and to a similar decision by the High Court of Kerala in Dahyabhai Patel and Co. Vs. Union of India (UOI), .
(34) It however appears to me that in both these cases the interpretation placed upon the provisions of Order 7 Rule ll(d) is rather too narrow. In my judgment, the provisions of this rule can be brought into operation at any stage of the suit.
(35) In Jagadish Chandra Deo Vs. Debendra Prosad Bagchi Bahadur and Others, ^) the plaintiff''s suit was dismissed long after the defendants had appeared and contested the suit inter alia, on the ground that the provisions of section 80 C.P.C. had not been complied with. On appeal the learned judges (Mukcrji and Mitter JJ.) held that the suit should not have been dismissed by the trial court and it should have been held that the suit was one which could not be instituted and as such the plaint should have been rejected.
VERY good reason which precludes the exercise of power under clause (2)(b) of Rule 1. Decided cases show that there has been divergence of judicial opinion among the High Courts in India about the meaning of the expression "other sufficient grounds" in clause (2)(b). Some of the High Courts, including a single Judge of Lahore High Court (TekChandJ.) in Mt. Fatima v. Nura and others AIR 1938 Lah 294 had taken the view that "other sufficient grounds" in clause (2)(b) of Rule I of Order 23 must be read ejusdem generis with the grounds mentioned in clause (2)(a). The High Courts of Bombay and Allahabad have however taken a different view. In Ramrao Bhagwantrao Inamdar Vs. Babu Appanna Samage, a Full Bench of Bombay High Court and in Abdul Ghafoor Vs. Abdul Rahman, 0 a Full Bench of Allahabad High Court has held that these words could not be read ejusdem generis with the words in clause (2)(a) but they covered grounds analogous to those mentioned in that clause. Non-compliance with the requirements of section 80 C.P.C. cannot Therefore be held to fall within either of the two clauses of Rule I of Order 23 CPC The application of Order 23 being thus ruled out, what is the course open to the court in a case like the present ? In my view, one course is to reject the plaint under Order 7 Rule 11 CPC while the other is to dismiss the suit.
(36) Mr. Chawla contends that Order 7 Rule Ii CPC deals with the rejection of the plaint before the defendant is summoned. But in a case where the defendant appears to defend the suit and it is found that notice u/s 80 is defective, the proper course is to dismiss the suit. In support of his argument the learned counsel has drawn my attention to a Bench decision of the High Court of Madras in Governor General of India in Council v. Raghunandan Shenoy AIR 1947 Mad. 64 and to a similar decision by the High Court of Kerala in Dahyabhai Patel and Co. Vs. Union of India (UOI), .
(37) It however appears to me that in both these cases the interpretation placed upon the provisions of Order 7 Rule ll(d) is rather too narrow. In my judgment, the provisions of this rule can be brought into operation at any stage of the suit.
(38) In Jagadish Chandra Deo Vs. Debendra Prosad Bagchi Bahadur and Others, ^) the plaintiff''s suit was dismissed long after the defendants had appeared and contested the suit inter alia, on the ground that the provisions of section 80 C.P.C. had not been complied with. On appeal the learned judges (Mukcrji and Mitter JJ.) held that the suit should not have been dismissed by the trial court and it should have been held that the suit was one which could not be instituted and as such the plaint should have been rejected.
(39) In Bhagwan Lal Vs. Union of India(UOI) and Others, a learned single Judge of Patna High Court held that a suit, not complying with the provisions of section 80 CPC could not be entertained by any court, and if instituted must be rejected under Order 7 Rule Ii CPC .
(40) To the same effect are the observations of Narasimhan J. of Andhra Pradesh High Court in Pillarisetti Gtoilingam v. The State of Andhra Pradesh to which a reference has already been made by me.
(41) In State of Bhopal and another v. Chhtoeram and another AIR 1953 MP 28 Sathey J. C. held that the only course open to the court in a suit instituted without giving proper notice u/s 80 CPC is to reject it under Order 7 Rule Ii C.P.C.
(42) Bachchu Singh and another v. The Secretary of State for India in Council and another 25 All 187 is one of the earliest cases and is in a way, a leading case on the point. In that case a suit had been filed against the Secretary of State for India in Council. Among other defenses to the suit, it was pleaded on his behalf, that previous to the institution of the suit the plaintiffs had not given any notice of their intention to bring the suit as prescribed by section 424 of the CPC (then in force). The trial court held that the notice served by the plaintiffs was not a good notice within the meaning of the section and accordingly dismissed the suit. The plaintiffs thereupon appealed to the High Court. It was held by a Bench consisting of Sir John Stanley C.J. and Banerji J. that the only course open to the court was to reject the plaint u/s 54(c) of the Code. It may be mentioned here that sections 424 and 54(c) of the CPC then in force were more or less identical with section 80 and Order 7 Rule 11 (d) of the Present Code. It would appear that in each of the cases cited above the defendant had appeared and had contested the suit, inter alia, on the ground that either no notice had been served by the plaintiff or the notice that had been served, was defective. The trial court had accepted the contention and dismissed the suit. The decision of the trial court was however up-set by the High Court holding that instead of dismissing the suit the plaint should have been rejected under Order 7 Rule Ii CPC .
(43) I have already said that in the present case the notice served by the plaintiffs u/s 80 CPC was defective as it did not cover the plea of adverse possession introduced by way of amendment. There was also no notice u/s 53-B of the Delhi Development Act in so far as defendant No. 3 was concerned. The case against that defendant could not be separated from that against defendants 1, 2, 4 and 5. This constitutes a
IN Bhagwan Lal Vs. Union of India(UOI) and Others, a learned single Judge of Patna High Court held that a suit, not complying with the provisions of section 80 CPC . could not be entertained by any court, and if instituted must be rejected under Order 7 Rule Ii CPC .
(44) To the same effect are the observations of Narasimhan J. of Andhra Pradesh High Court in Pillarisetti Gtoilingam v. The State of Andhra Pradesh to which a reference has already been made by me.
(45) In State of Bhopal and another v. Chhtoeram and another AIR 1953 MP 28 Sathey J. C. held that the only course open to the court in a suit instituted without giving proper notice u/s 80 CPC is to reject it under Order 7 Rule Ii C.P.C.
(46) Bachchu Singh and another v. The Secretary of State for India in Council and another 25 All 187 is one of the earliest cases and is in a way, a leading case on the point. In that case a suit had been filed against the Secretary of State for India in Council. Among other defenses to the suit, it was pleaded on his behalf, that previous to the institution of the suit the plaintiffs had not given any notice of their intention to bring the suit as prescribed by section 424 of the CPC (then in force). The trial court held that the notice served by the plaintiffs was not a good notice within the meaning of the section and accordingly dismissed the suit. The plaintiffs thereupon appealed to the High Court. It was held by a Bench consisting of Sir John Stanley C.J. and Banerji J. that the only course open to the court was to reject the plaint u/s 54(c) of the Code. It may be mentioned here that sections 424 and 54(c) of the CPC then in force were more or less identical with section 80 and Order 7 Rule 11 (d) of the Present Code. It would appear that in each of the cases cited above the defendant had appeared and had contested the suit, inter alia, on the ground that either no notice had been served by the plaintiff or the notice that had been served, was defective. The trial court had accepted the contention and dismissed the suit. The decision of the trial court was however up-set by the High Court holding that instead of dismissing the suit the plaint should have been rejected under Order 7 Rule Ii CPC .
I have already said that in the present case the notice served by the plaintiffs u/s 80 CPC was defective as it did not cover the plea of adverse possession introduced by way of amendment. There was also no notice u/s 53-B of the Delhi Development Act in so far as defendant No. 3 was concerned. The case against that defendant could not be separated from that against defendants 1, 2, 4 and 5. This constitutes a bar to the maintainability of the suit against all the five defendants. The plaint is Therefore liable to be rejected under Order 7 Rule ll(d) CPC .
(47) Mr. R. M. Gupta learned .counsel for the plaintiffs has, tried to distinguish the cases cited by Mr. Chawla and has urged that Section 80 only provides a mode of procedure and its only object is to inform the authorities about the plaintiffs'' intention to institute a suit if redress should not be forth-coming for the wrong complained of by him. The notice should not Therefore be construed in a manner divorced from common-sense. Special emphasis has been laid by the learned counsel on the cases reported as State of Seraikella Vs. Union of India (UOI) and Another, , Dhian Singh Sobha Singh and Another Vs. The Union of India (UOI), and Bhagwan Lal Vs. Union of India(UOI) and Others, . None of these cases however touches the point which arises in this case. It is next urged by Mr. Glipla that the plaintiffs'' claim relating to property of the value of Rupees fifty lacs is at stake in this case. Merely because the lawyer drafting the plaint or advising the plaintiffs was negligent or careless, the plaintiffs should not be non-suited on account of such technical mistake and an opportunity should be afforded to rectify the mistake by filing a fresh suit after serving a proper notice. In this connection, my attention has been drawn to certain observations in a judgment of Lahore High Court: tiarpit Singh and another v. Punjab Government AIR 1946 Lah 429 . The case is distinguishable on facts. Even otherwise that case does not deal with the defect arising out of non-compliance with the provisions of section 80 which involves a question of jurisdiction where considerations of equity and hardship have no relevance at all.
(48) Lastly it is urged that if a conclusion adverse to the plaintiffs is reached on their application for withdrawal of the suit, the plaintiffs would like to go on with the suit as it is. There is startling naivete about the suggestion made by the learned counsel. If the suit is had because there is no proper suit, the law casts a duty on the court to reject the plaint. I Therefore do not see how the plaintiffs can be allowed to go on with the suit which in my opinion is had for want of notice and which the plaintiffs themselves apprehend will fail in the end on that account.
(49) The result of the fore-going discussion is that the plaintiffs application for withdrawal of the suit is dismissed and the plaint filed by them is rejected under Order 7 Rule ll(d) CPC The plaintiffs will also pay costs incurred sc far by defendants I to 5. Order accordingly. bar to the maintainability of the suit against all the five defendants. The plaint is Therefore liable to be rejected under Order 7 Rule ll(d) CPC .
(50) Mr. R. M. Gupta learned .counsel for the plaintiffs has, tried to distinguish the cases cited by Mr. Chawla and has urged that Section 80 only provides a mode of procedure and its only object is to inform the authorities about the plaintiffs'' intention to institute a suit if redress should not be forth-coming for the wrong complained of by him. The notice should not Therefore be construed in a manner divorced from common-sense. Special emphasis has been laid by the learned counsel on the cases reported as State of Seraikella Vs. Union of India (UOI) and Another, , Dhian Singh Sobha Singh and Another Vs. The Union of India (UOI), and Bhagwan Lal Vs. Union of India(UOI) and Others, . None of these cases however touches the point which arises in this case. It is next urged by Mr. Glipla that the plaintiffs'' claim relating to property of the value of Rupees fifty lacs is at stake in this case. Merely because the lawyer drafting the plaint or advising the plaintiffs was negligent or careless, the plaintiffs should not be non-suited on account of such technical mistake and an opportunity should be afforded lo them to rectify the mistake by filing a fresh suit after serving a proper notice. In this connection, my attention has been drawn to certain observations in a judgment of Lahore High Court: tiarpit Singh and another v. Punjab Government AIR 1946 Lah 429 . The case is distinguishable on facts. Even otherwise that case does not deal with the defect arising out of non-compliance with the provisions of section 80 which involves a question of jurisdiction where considerations of equity and hardship have no relevance at all.
(51) Lastly it is urged that if a conclusion adverse to the plaintiffs is for withdrawal of the suit, the plaintiffs would like to go on with the suit as it is. There is startling naivete about the suggestion made by the learned counsel. If the suit is had because there is no proper suit, the law casts a duty on the court to reject the plaint. I Therefore do not see how the plaintiffs can be allowed to go on with the suit which in my opinion is had for want of notice and which the plaintiffs themselves apprehend will fail in the end on that account.
(52) The result of the fore-going discussion is that the plaintiffs'' application for withdrawal of the suit is dismissed and the plaint filed by them is rejected under Order 7 Rule ll(d) CPC The plaintiffs will also pay costs incurred sc far by defendants I to 5.